Key Differences Between Immigration Lawyers and Consultants (and 5 Red Flags to Watch Out For!)

KEY DIFFERENCES BETWEEN IMMIGRATION LAWYERS AND CONSULTANTS (AND 5 RED FLAGS TO WATCH OUT FOR!)

By Sharifa N. Khan, Canadian Immigration Lawyer https://cornwallimmigrationlawyer.ca/about

The Information in this post is not legal advice. To book a consultation about your immigration matter(s), email sharifakhanlaw@gmail.com or call 416 831 4521, Monday to Friday, 9am- 5pm.

As a Canadian immigration lawyer, I often encounter potential clients who assume I’m an immigration consultant (officially, a Regulated Canadian Immigration Consultant), or who use the titles interchangeably. When I clarify that I am an immigration lawyer and not a consultant, I’m often asked a legitimate (and very fair) question: what is the difference between the two?

While I personally know and have worked with experienced, competent and ethical Regulated Canadian Immigration Consultants over the course of my career, there are key differences between lawyers and consultants that prospective clients might want to consider before choosing to retain the services of one over the other.

In short, lawyers have extensive legal training, a variety of legal skills and competencies (including the ability to appear in court), and are subject to substantial regulatory oversight that provide considerable incentive to uphold the high ethical and professional standards of the legal profession. While regulated Canadian Immigration Consultants are trained in Canadian immigration and citizenship regulations, policies and procedures and are also subject to regulatory oversight, they are not lawyers and are not authorized to practice law in Canada.

The difference in education, training, skills and competencies as well as the severity of consequences in regulatory oversight between the two professions can lead to significantly different outcomes in an immigration application.

EDUCATION, TRAINING AND LICENSING

Lawyers

The journey to becoming a lawyer in Ontario is a long, arduous, and highly competitive one. After completing a Bachelor's degree (typically four years at a Canadian university with a minimum A- GPA), aspiring lawyers must pass the rigorous and highly- competitive Law School Admission Test (LSAT) to be admitted to a Canadian law school. This is an extremely competitive process and having a high GPA and LSAT score does not guarantee admission. Law schools are also looking for well- rounded candidates with profiles that include demonstrated community involvement and extracurricular achievements.

Once receiving that highly- coveted admission to law school, aspiring lawyers in Ontario must then successfully complete a three- year law degree at a recognized law school. During these rigorous, formative and intellectually- challenging years at law school, law students learn and hone essential legal skills including but not limited to: legal analysis and problem- solving (how to think critically about and focus on key elements of a legal problem), legal research and writing, understanding and interpreting the law (statutes, regulations and caselaw), how to make sound and effective legal arguments (both written and oral), and ensuring compliance with ethical legal and professional standards. While law students are not required to study immigration law in law school, the legal skills that lawyers develop during their law school years are invaluable in the practice of immigration law.

Additionally, some law schools now have experiential components (both mandatory and voluntary) that allow law students to gain hands- on legal training in at least one area of the law, prior to finishing law school. This is significant, as much of learning about the law and indeed, how to become a competent lawyer, takes place outside of law school.

After successful completion of law school, lawyer candidates must then pass the provincial bar examination. In Ontario, the bar exam consists of two separate sittings, one Barrister exam (which has a court/ litigation component) and a separate Solicitor exam. Both are highly competitive (and stressful!) exams which test for substantive knowledge of the law, legal ethics and procedural competencies.

Finally, lawyer licensing candidates in Ontario must also complete eight to ten months of experiential training in a legal workplace environment (such as a law firm) before becoming licensed lawyers. This experiential training requirement means that before a candidate is even licensed as a lawyer, they have accumulated almost a year of practical, hands- on legal training in at least one area of the law.

In my case, I completed a full year (12 months) of on-the-job legal training with an immigration law firm and under the direct supervision of an experienced and reputable immigration lawyer, exclusively in the area of immigration law, prior to even becoming licensed as a lawyer. This was an excellent way for me to become both familiar with and knowledgeable about my chosen area of practice, and I was already well- versed in many areas of immigration law prior to officially becoming a lawyer.

[For more information about the Ontario lawyer licensing process, see the Law Society of Ontario website: https://lso.ca/becoming-licensed/lawyer-licensing-process]

Regulated Canadian Immigration Consultants

By contrast, the licensing process for immigration consultants in Ontario is far less rigorous and much shorter than the licensing process for lawyers. Regulated Canadian Immigration Consultants are currently governed by the College of Immigration and Citizenship Consultants (“the College”). Candidates who successfully complete the licensing requirements are authorized to use the designation “Regulated Canadian Immigration Consultants”, though I use the term “immigration consultant” interchangeably in this post. (If you decide to use the services of an immigration consultant, verify that they are actually an authorized, Regulated Canadian Immigration Consultant with a corresponding registration number, see below.)

Regulated Canadian Immigration Consultant licensing candidates are required to complete the Graduate Diploma in Immigration and Citizenship Law, offered by Queen’s University. To gain admission, most successful applicants would have completed an undergraduate/ Bachelor’s degree with a B average. This Graduate Diploma is a three- term, nine course program that is completed online in under 12 months. While it is focused on Canadian immigration law, this program is not a Juris Doctor (law) degree and it does not qualify graduates to practice law in Canada.
[For more information on the Graduate Diploma in Immigration and Citizenship Law, see: https://immigrationdiploma.queenslaw.ca/faq]

After completing the Graduate Diploma, candidates must then pass the Entry-to-Practice Exam. This is a three hour online exam consisting of 135 questions specific to immigration and citizenship legislation, regulations, procedures and professional ethics and responsibilities [see: https://college-ic.ca/become-licensed/how-do-i-become-an-rcic-/entry-to-practice-exam-epe-info].

Unlike lawyer licensing candidates, prospective consultants are not required to fulfill an experiential, hands- on learning component under the supervision of an experienced and reputable immigration practitioner. Instead, they become licensed primarily after completing the online Graduate Diploma (in under 12 months) and passing the online licensing exam. Once a candidate has met the requirements set out by the College, they are authorized as a Regulated Canadian Immigration Consultant to represent applicants in Canadian immigration and citizenship matters.

[For more information about the Regulated Canadian Immigration Consultant licensing process, see: https://college-ic.ca/become-licensed/how-do-i-become-an-rcic- ]

SCOPE AND COMPETENCIES

Since immigration consultants do not hold law degrees, have not undergone legal training to work as lawyers, and are not licensed to practice law, they are not authorized to appear in court and do not typically have the legal skills needed to effectively navigate more complex immigration cases.

Some examples of potentially complex immigration cases include: previous immigration refusals, expiration of status/ regularizing status, criminal charges or convictions (which may require the ability to understand the implications of criminal law/ procedures and can have potentially catastrophic consequences for applicants and their families), misrepresentations (including mistakes or inaccuracies submitted on application forms) and immigration appeals.

By contrast, given the rigorous legal education and licensing process that immigration lawyers undergo, it is often more advantageous to hire an immigration lawyer- from the start- who can competently guide you through the often- complicated legal bureaucracy, laws and regulations that comprise Canada’s immigration landscape. Hiring an immigration lawyer from the beginning might also be more cost- effective in the long- term as it is more expensive to litigate an issue (following a refusal) that might have been pre-emptively and proactively detected and addressed upfront by a lawyer, given their extensive legal training and skill set.

I have often had clients retain my firm after receiving a refusal for an application (including straightforward ones) that was not completed competently because the immigration consultant retained for the matter missed key legal issues, misinterpreted an area of the law, or did not proactively and pre-emptively detect and address issues through adequate legal analysis and arguments. The application is then refused and either needs to be re- filed (with these same issues addressed and corrected) or appealed/ judicially reviewed at the Federal Court (again, immigration consultants are not authorized to appear in court). This is an unfortunate waste of time and money for clients, many of whom have families relying on them, Canadian jobs at stake or their immigration status in Canada on the line.

Again, immigration lawyers have undergone extensive mandatory legal training to develop legal skills including but not limited to: the ability to competently analyze a legal problem and devise potential strategies, proper interpretation and application of various immigration statutes (laws and regulations), the ability to read, understand and apply favourable caselaw precedents to their clients’ cases (and to distinguish unfavourable ones) and how to make sound, effective and convincing legal arguments (written and oral) to both protect and advocate for the interests of their clients.

These legal skills offer tremendous value for clients, even in cases that are not considered complex. Afterall, a great strategy for avoiding refusals and further difficulties/ complications is to ensure that your seemingly- simple application is completed thoroughly and properly in the first place. This is especially important since a refusal on one’s immigration record can make subsequent applications more difficult, and as immigration refusals can be very difficult to overcome.

PROFESSIONAL STANDARDS AND FIVE (5) RED FLAGS THAT SUGGEST UNETHICAL OR INCOMPETENT BEHAVIOUR

While both lawyers and consultants are members of regulated professions (in Ontario, lawyers are governed by the Law Society of Ontario, and Regulated Canadian Immigration Consultants are governed by the College of Immigration and Citizenship Consultants), which help to ensure accountability and protection for the public, law societies have been regulating lawyers for many decades in Canada, while immigration consultants have only recently become a regulated profession.

In addition, lawyers are regularly audited by their respective provincial law society, with considerable consequences for non- compliance. In fact, depending on the severity, a finding of misconduct (criminal, unethical or lack of competence) can lead to a lawyer losing their law licence and with that, also losing an investment amounting to years of building a good reputation in the legal community, a significant investment in time spent on legal education and tens of thousands of dollars in law school tuition. In short, the stakes are extremely high, and this is often a great incentive for lawyers to uphold the high ethical and professional standards set by their respective governing bodies.

By contrast, Regulated Canadian Immigration Consultants have far less stringent licensing requirements and are governed by a relatively new regulatory framework. Unfortunately, there have been many cases of immigration fraud perpetrated by immigration practitioners against an unsuspecting public. However, it’s important that members of the public know that there are steps they can take to protect themselves. For instance, being aware of potentially predatory and fraudulent marketing tactics can be instrumental in avoiding problematic practitioners.

Here are 5 red flags that suggest unethical/ problematic behaviour:

1. Consultants who advertise themselves as lawyers, attorneys or as operating a law firm;

2. Immigration practitioners who claim to have ties to the Canadian/ a provincial government (ex. “authorized by the Canadian government”) or other “special” connections;

3. Immigration practitioners who guarantee fast/ expedited processing of an application;

4. Immigration practitioners who guarantee the approval of an application; and

5. Immigration practitioners who promise foreign nationals that they will connect them to jobs with Canadian employers (often for a considerable fee).

Members of the public can also visit the respective regulatory bodies for lawyers and Registered Canadian Immigration Consultants to verify that the immigration practitioner they are considering retaining is qualified and without any disciplinary history.

To verify the status of an immigration lawyer: https://lso.ca/public-resources/finding-a-lawyer-or-paralegal/lawyer-and-paralegal-directory

To verify the status of an immigration consultant: https://college-ic.ca/protecting-the-public/find-an-immigration-consultant

As an experienced immigration lawyer, Sharifa N. Khan can assist you and your loved ones with your Canadian immigration matters. Don’t hesitate to be in touch: email sharifakhanlaw@gmail.com or call 416 831 4521, Monday to Friday, 9am- 5pm https://cornwallimmigrationlawyer.ca/